Copyright and Broadcaster’s rights

What is a broadcast?

The Copyright Act, 1957 originally used the term ‘radio-diffusion’ under section 2(v) to include communication to the public through any means of wireless diffusion in sound or visual form or both. Later, the 1983 amendment replaced the term ‘radio diffusion’ for ‘broadcast’ and was defined as communication to the public by wireless diffusion in the form of signs, sounds, visual images or by wire and also included a rebroadcast. In simple words, the transmission of programmes or information that we see on TV or hear on radio can be referred to as broadcasting. Instead of the owner of the copyright issuing copies for distribution, the works are available for being seen or heard or otherwise enjoyed by the public. 

Every broadcasting organization has been conferred a special right under the Act which is known as “broadcast reproduction rights”. Since, copyright does not subsist in broadcast in cable programmes it is necessary to confer these special rights.

The right of broadcast reproduction subsists for twenty five years following the year in which the broadcast is made. The Act is silent on repeat broadcasting and in absence of such a provision there is no new broadcast reproduction right conferred on the repeat broadcaster.

Rights of owner in broadcast and cable programmes

No person or organization can rebroadcast the broadcast without the license of the right owner. The term ‘rebroadcast’ has been included in the definition of broadcast and communicating the work to the public without the authorization from the owner is restricted.

According to section 37 of the Act during the continuance of broadcast reproduction right in a broadcast if any person does any of the following acts of broadcast:

• Re-broadcasts the broadcast.
• Charges the public for the broadcast to be heard or seen.
• Makes any sound or visual recording of the broadcast.
• Makes any reproduction of such sound or visual recording without license or against the terms of the license.
• Sells or hires to the public, or offers for such sale or hire, any such sound or video recording. 

Any person doing such acts will be deemed to have infringed the broadcast reproduction right of the owner subject to provisions of section 39 of the Act.

Fair use in criticism, review and news reporting

Section 39(b) of Act states that no broadcast reproduction right is infringed by the use of excerpts of a broadcast in reporting current events for bonafide review, teaching or research. The Delhi High Court in Star India Pvt. Ltd. v. Piyush Agarwal laid down two objective facts to find out whether the reporting constituted an infringing activity or not. Firstly, whether the information being diffused was result oriented or not and secondly, whether it was an analysis or review of the sporting event. If the infringing party failed to qualify as ‘reporting’, i.e., not result oriented but by way of some analysis or review then it would be the end of the matter and an injunction would follow.

Section 52 of the act lays down certain acts that do not constitute infringement of broadcast reproduction rights with certain modifications and adaptations. They are referred to as ‘permitted acts in relation to copyright’